The following observations
represent my opinions. While I believe that the opinions expressed here are
consistent with c. 212 § 3, I submit all to the ultimate
judgment of the Catholic Church. The letter “c.” stands for
“canon” of the 1983 Code of Canon Law. All translations are
mine, even if they coincide at times with those of others.
Dr. Edward N. Peters

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In
the Light of the Law:

a canon lawyer's blog on current issues

Blog Archives 2004

Brisbane's Bad Baptisms

2 December 2004

According
to
ABCNEWS On-Line, a parish church in Australia might have performed thousands
(yes, thousands) of invalid baptisms over the years as a result of its
priests changing the Trinitarian formula (the words) used at baptism. Brisbane
Archbishop John Bathersby has stated: "At
a certain stage a parish could—and I'm not saying it has happened here—a parish
could make so many changes that they really are no longer Catholic…Perhaps
they're a type of Christian church in their own right but they're not a part of
what we would refer to as a Catholic church." In some respects, even these worrisome words
understate the problem.

Invalid Catholic
baptisms do not result in some half-way form of Christianity. They result in
nothing. One who is invalidly baptized is in exactly the same ecclesial
status as one who was never baptized. Period. Think about it this way:
when Angela and I brought home each of our new-borns, they were the cutest
little pagan babies in the world. But if they had never been baptized
(validly, of course), they would have remained our cute "pagan" babies.
Just progressively taller.

Given, moreover,
evidence that such invalid baptisms have been going for many years, one must now
ask how many of these deceived people went on to first Communion, Confirmation,
perhaps even married, without benefit of the desired sacraments, because no
sacrament can be validly received without prior Baptism (1983 CIC 842, 849). The
complications in those areas alone will be enormous, and we haven't even raised
potential penal implications of sacramental simulation (1983 CIC 1379), let
alone sacrilege, by offending clerics (1983 CIC 1389).

In light of such
factors, I have to wonder how priests who seem to have performed so disastrously
for so long on such an incredibly simple but vitally important point are
actually being left in place pending investigation. +++

Overview of Sacramental Responses

Baptisms: All will have to be re-conferred,
"absolutely" at that, not "conditionally", since there is no prudent doubt about
the invalidity of these attempts at baptism (1983 CIC 845, 869).

Then, among those people:

Confirmations: All would have to be re-conferred, "absolutely" at that, not
"conditionally", since there would be no prudent doubt about the invalidity of
the earlier attempts at baptism, making any subsequent attempts at Confirmation
automatically invalid (1983 CIC 845, 879).

Holy Communions:
Cannot be rehabilitated in anyway for the non-baptized, but 1) God will impute worthy intentions to those who intended to
receive Him in the most holy Sacrament, and 2) one's status in the Church is not
impacted by making "First Holy Communion" anyway, so it can be re-done at a
convenient time, post-baptismally of course (1983 CIC 912-914). Note that, with
the passage of time, Canons 852 and 866 might have become applicable in many of
these Confirmation and Communion cases.

Confessions: Cannot be rehabilitated in any
way, but 1) God will impute worthy intentions to those who expressed sorrow for sin
in what they thought was sacramental Confession, and 2) subsequent Baptism will
obviate the need for sacramental Confession of any sins committed up to that
time (1983 CIC 849). The obligation of the seal still applies to any
communications made in these invalid confessions (1983 CIC 983-984, 1388).

Matrimony: If there are such cases (and press reports
assert that some invalid baptisms were performed on adults, and we know that
adults often seek Baptism at the time of marrying a Catholic), the matter can be
quite complex. Most issues would center on the fact that non-baptized persons
attempt marriage invalidly with Catholics absent a dispensation from the
impediment of "disparity of cult" (1983 CIC 1086), and while such dispensations
are routinely granted if petitioned, none would have been sought in these cases
because everyone assumed both parties were baptized. Possible canonical
solutions include convalidation (1983 CIC 1156-116) or radical sanation (1983
CIC 1161-1165), declaration of matrimonial nullity (e.g., 1983 CIC 1686), or
even Pauline or Petrine Privilege exercises, all of which are beyond the scope of this Blog. Basically, if any subsequent weddings occurred among this pool of
unfortunate people, each baptismal fact pattern will have to be analyzed
separately and carefully.

Anointing of the Sick:

Cannot be rehabilitated in anyway for the non-baptized,
but 1) God will impute worthy intentions to those who intended to
turn to Him in this sacrament, and 2) subsequent Baptism will obviate any need to re-confess
past sins (1983 CIC 849).

Holy Orders: Probably not an issue on these facts,
Deo gratias. It would include most of the above, and worse.

The long and the short of it is that a genuine ecclesiastical
travesty has been worked on hundreds of innocent people who trusted these
priests to know what they were doing. If penal canons such as c. 1379
(simulation of sacrament) and c. 1389 (abuse of ecclesiastical function), to
take just two examples, are ever to be applied, this surely seems the case. +++

Perhaps it is too soon for retrospectives, events might not have come to rest yet. But here goes.

When I saw Balestrieri/De Fide
Press Release # 2 with its headline, SEN. JOHN KERRY “EXCOMMUNICATED,” ACCORDING
TO VATICAN RESPONSE, I was stunned, not because I thought it was an
exaggeration, let alone because I feared it was false, but because I believed
the statement to be true. In no time at all, several major Catholic news sources
repeated and expanded on the B/DF claim. It could only mean, or so I thought, a
major development in a very important case.

I knew that 1983 CIC
1417 allowed the faithful at any stage of a canonical proceeding to request Rome
to assume direct jurisdiction over a case, and while such transfers are not
common, I figured, given the novelty, complexity, and volatility of B/DF’s
heresy case against a US presidential candidate in an election year, that it had
been transferred from Boston and decided against Sen. Kerry. Wow. To say the
least.

But then I read Fr.
Basil Cole’s actual response to B/DF. It was immediately obvious to me that such
a thoughtful letter, whoever requested it and whoever might have agreed with it,
was in no way, shape, or form, a “Vatican response” to anything, let alone an
announcement that Kerry was excommunicated. Kerry isn’t even mentioned in the
letter, and the few lines that talk about the penalty of excommunication (as
opposed to discussing the crime of heresy) are carefully nuanced against
particular applications and are themselves canonically debatable (as Cole
himself recognizes).

Now I was
beginning to feel hoodwinked. And so were lots of other people, the mass of whom
have far less experience assessing canonical and ecclesiastical communications
than I have, or presumably than Balestrieri has. These folks were consequently
reading far more into B/DF’s characterization of Cole's letter than was
warranted. Then, as B/DF’s claim to have a “Vatican response” in the Kerry case
began to unravel, pundits got into debates about what “contact” means, and a lot
of nasty things got said about “Rome’s backing off” and “CDF is trying to cover
its tracks” and “It’s so obvious Kerry is a heretic [sic], why won’t the Vatican
just say so?” and so on. But all the while, as far as Rome was concerned, it was
literally a non-event. Rome had not done anything, good, bad, or
indifferent. B/DF claimed that it had.

Like some other
observers of B/DF’s heresy case, I have kept my reservations about its canonical
persuasiveness muted. First, it’s not my case; second, my concerns about its
problems might be wrong; third, unknown factors might develop to improve its
chances of succeeding. But there seems little point in worrying about such things
now. At this point, there only remains to salvage from the experience some
object lessons, of which I think there are many. Here I will mention just one,
on canonical technique.

Two impressions are
given about the trip Balestrieri made to Rome after he filed his heresy case
against Kerry: one version has him posing interesting academic questions about
heresy to various Church officials (mostly at the Congregation for the Doctrine
of the Faith), the other has him disclosing his status as an active litigant but
asking more or less the same questions of the same people. Conceivably, he could
have approached some Vatican officials one way and others in the other, but
either way, it’s problematic. Consider:

A) If Balestrieri posed purely academic
questions to important and very busy Vatican officials, who kindly referred the
young scholar for some erudite guidance from equally busy professionals, he has
absolutely no right later to present any communications occasioned by such
requests as if they were in any way official responses to his canonical
case. If that is what happened here, then no wonder Roman officials are so cool
toward legitimate questions posed by outsiders: they have no idea how their
responses are going to be construed by recipients. Cole’s letter could not be
clearer that it was a private response. Why should Vatican officials now have to
run around denying that it’s anything else, just because B/DF claims that it is?

B) If, on the other hand, Balestrieri identified
himself as a litigant and asked CDF the same questions, then (notwithstanding
the fact that the response he got from Cole is still utterly unofficial),
Balestrieri has, at a minimum, come very close to engaging in ex parte
communications with officials of the same dicastery before which appeals in a
heresy case are likely to end up, i.e., the kind of communications frowned on, if
not illegal, in mature legal systems, but which CDF has constantly to beware of
due to the fact that it is both an administrative and a judicial dicastery. I
know the disquiet an advocate feels when the other side has access to
decision-makers that he and his client do not enjoy. It’s not pleasant, and whatever some people’s attitude toward
using such approaches might be, I
think responsible canon lawyers should strictly avoid using them, both in
actuality and even in appearance.

So now, it seems to me,
the canonical case against Kerry and a host of other scandal-mongering
pro-abortion Catholic politicians has to be reconstructed, basically from
scratch. Perhaps some of the research generated by B/DF can be used in such a
case, but it is not likely to be primarily a “heresy” case next time, and it’s
certainly not going to come together quickly or be tried in the media. In the
meantime, the prohibitions imposed by various bishops against abortion
supporters like Kerry taking the Eucharist in their territories stand, for such
decrees are not dependent on the complexities of a canonical heresy trial, but
rather, are firmly based on straight-forward sacramental disciplinary norms (esp. 1983 CIC 915). +++

Updates:
Wow, lots of feedback
on this one!
Let me just respond to some of the sincere questions, or the more negative
jibes. All comments are read by me, and appreciated, though
I can't reply to them all. So, in no particular order:

Why do you say Fr. Cole’s letter is “private”? Cole said Balestrieri
could publish it.

As I used the word, “private” does not mean “confidential” or “secret”, it means
unofficial or based on personal persuasiveness instead of on legal authority.
Cole gave permission to make his letter “public”, in your sense, but that does not
change its “private” character. It’s a distinction canon lawyers and theologians
take for granted.

Peters should not criticize Balestrieri’s case publicly.

The first I ever heard of the B/DF heresy case against Kerry was when I read about it
in the news where it had been put by B/DF. I published one cautionary
but generally supportive blog about it on July 1 (scroll down a bit). Not till
October, after B/DF
released a series of press statements (picked up by, among many others, CWN, CRUXNEWS,
DRUDGE, and various East Coast print media), appeared on EWTN, and gave radio
interviews, etc., did I offer any further comments, and then only on matters
made public in those statements. Yet I’m out of line for discussing this
publicly?

What has Peters done for pro-life over the last 30 years?

Not nearly enough. Over the last 26 years, my prayers, picketing of abortion
clinics, sidewalk counseling (with four surely deferred, and hopefully cancelled,
abortions), volunteer legal defense work, extensive pro-life teaching and
writing in many fora, traditional political activism, small donations,
giving canonical advice to pro-lifers at many levels of the Church, sponsoring two kids
in a Third World orphanage, and raising six
firmly pro-life children mostly on a Church worker’s salary, pale next to
the value of a single human life lost to abortion. Deus omnipotens, miserere
nobis!

It sounds like no matter what Balestrieri did in Rome,
you’d have a problem with it.

There is some truth to that. I think when a lawyer puts together and files a
legal case, that he should let justice take its course. Courts know how to ask for
more information they might want, and it is not up to lawyers, in my opinion, to
agitate in the public arena for their cases, however worthy their goals are.
Let commentators do that, for better or worse. From a
purely tactical point of view, moreover, I think the time to gather favorable opinions
from heavy hitters is before one files a controversial case, and the
place to disclose them is within the formal proceedings. Getting some long after the filing is
complete, and broadcasting them in press releases, suggests to some, anyway,
poor research and gives the opposition unnecessarily advanced notice
of points you presumably wanted to raise in court.

Why does the heresy case have to start from scratch?

Well, that’s just my opinion (as I said in my blog), and obviously any number of
things could still happen with or to the case. B/DF has indicated several times that
they are very confident in the case they put together, and I think there is some
impressive material therein. As long as regular folks
(who do not know how canonical cases actually proceed or what the legal issues
really are) are not mislead into thinking that anything about the B/DF Kerry heresy suit
is a “slam dunk”, then I’m content to wait and see with everyone else.

If you're such an "expert" in all this, why didn't you do it
yourself?

Some folks think Ed Peters looks

a little like FBI Agent Eliot Ness

Do what? File a
heresy case against John Kerry? Precisely because
I am an "expert" in this,
I think the obstacles to getting the canonical equivalent of an
indictment, let alone a conviction, for heresy on these
facts are all but insurmountable, so I would not have tried it at
all, especially not when other canonical means of redress were
available. For more than a decade,
I have been pointing to 1983 CIC
915 as a way to restrict major pro-abortion politicians from
approaching the Eucharist, as well as trying to make people aware
of 1983 CIC 1369, a provision that allows, among other things,
various canonical sanctions to be imposed on those who use the public media to
seriously harm good morals (Scroll down in this very Blog to
4 October
2002). I grant neither of these approaches has the headline
appeal of "excommunication" or "heresy trial", but so what? Remember:
Eliot Ness sent the murderous sociopath Al Capone to prison for tax evasion because
he got an easier conviction that way and still managed to take a big bite
out of crime. In any event, if

someone
has a better idea, I assure you I'm more than open to it. Like Marc
Balestrieri, we all think the scandal has gone on long enough.

Shouldn’t we support
Balestrieri, since he’s the only who’s trying anything, and even if he fails, he
still sent a clear message that enough is enough?

Fair
question, to which I can only offer my opinions. First, it is simply not true
that for all these years no one has done anything about the scandal of
pro-abortion Catholic politicians. Younger people often arrive on a dreadful
scene in this Valley of Tears, take one look around, and assume that no one has
done anything about it. That’s an understandable reaction on their part (I
experienced it myself not so many years ago), but it is
frequently wrong, and it is certainly unfair to those (many or few) who have
been struggling for decades without even the consolation of tangible results for
the labors.

More
importantly, while I agree that at times we are called to undertake efforts
offering little prospect of worldly success, there are certainly other times
when we are called to consider that our failed efforts will make it even more difficult for others to come
along and try (or continue) their approaches. That possibility needs to be
seriously weighed, too, and the more prominent the effort envisioned, the more
burdensome the duty of circumspection. If the proverbial gun (or cannon?) goes
off half-cocked, it will probably miss its target, imperil the innocent, and
require additional time and resources to set right again for proper use. At the
very least, it is an open question as to which way history will view B/DF’s
canonical heresy case against John Kerry, and how it will assess the message
B/DF
sent.

Post-script:
October 22, Apologist Jimmy Akin suggests
a way to get out of this with the least residual damage. Worth
considering.

Obviously, and despite some
pretty dramatic press descriptions to the contrary, Cole’s excellent
letter is not and plainly does not purport to be an official statement by
the Congregation of the Doctrine of the Faith, let alone is it an authentic
interpretation (1983 CIC 16 § 1) of the canons in question (incl. 1983 CIC 750,
1321, 1331, 1364, and 1398) or an endorsement of the canonical case prompting
the letter. Cole's letter is several steps removed from any kind of official
Vatican decision in this case.

Cole’s theological analysis does, however,
move us closer to the central canonical question raised in this matter,
namely: whether advocacy of abortion, by a knowledgeable Catholic, in and of
itself, is heresy. Now, for the reasons ably outlined by Cole, obstinate doubt or
denial of Church teaching on abortion may well be regarded as heresy. But
our concern is different: is disregard of Church teaching on abortion,
perhaps even chronic contempt for it, necessarily heretical? Consider: If
I deny the Real Presence of Christ in the Eucharist, I commit heresy. But if I
throw the Eucharist in the gutter, I commit the crime of sacrilege (1983 CIC
1367), not heresy (1983 CIC 1364).

So, a Catholic politician might
say, “I believe that human life begins at conception and that abortion kills an
innocent baby. But I want to be elected to office, and that means I support
abortion.” Such reprehensible words/deeds would be gravely sinful and would
place the politician in peril of his soul. But it is not clear that his sin would be heresy.
At least, it is not clear how this scenario would be held as heresy, and we not be required to hold virtually every other
deliberate violation of grave moral law as heretical.

An interpretation of heresy that
construes it as, in effect, an included offense in nearly every grave sin is
not, I suggest, a part of canonical jurisprudence. Even the Pio-Benedictine
Code, which regarded those committing certain crimes as being “suspected of
heresy” (see 1917 CIC 2315 and, e.g., 1917 CIC 2371, on bishops promoting to
orders in simony), did not see the primary crime in such cases to be heresy.
At most, certain crimes provided a basis for considering whether they might have
arisen from an underlying heresy. But the failure to prove heresy as a “motive” for
the primary crime would not mean that a crime was not committed, nor
would one’s heresy about a given doctrine necessarily lead to the conclusion
that one had committed another crime inspired by the heresy. In any case, it
should be noted that those guilty of abortion were not suspected of
heresy under Pio-Benedictine law (see 1917 CIC 2350) and that, even if
they had been, “suspicion of heresy” is not part of the 1983 Code.

Of course, a pro-abortion
politician might have made statements obstinately denying or doubting Church
teaching on abortion as part of his political support for abortionism. Such
assertions could make one liable to a heresy charge. But that is rather
different from arguing that one’s support for pro-abortion policies is itself
heretical. Ironically, Kerry’s statements on things theological are so muddled
and confused that there is some question as to what he precisely believes, and
even whether some of his more bizarre expressions show sufficient intellectual
coherence so as to be susceptible to juridic evaluation. But I digress.

Actions can speak louder than
words. Conceivably, some actions, even unaccompanied by words, could be
juridically construed as heresy, and there is some nuanced support for this
interpretation in canonical tradition. Yet C

ole's
letter directly suggests this conclusion about Kerry in only one,
obviously less formal, paragraph at the very end of his fine theological
analysis, and even that observation contains a number of important qualifiers.
Generally, though, the fact patterns wherein behavior speaks to the question of
heresy still leave plenty of room for argument under an ecclesiastical penal law
system that already seems (too?) generous with affirmative defenses.
Nevertheless, as I said at the outset, Cole's answers to Balestrieri's
questions greatly help us to ask pointedly whether open support for abortion is,

in and of itself,
heresy under 1983 CIC 1364. It's a question well worth answering, though I think
it's still open.

Sen. John Kerry’s active support
for abortion is a disgrace, and canon law is able to and should respond
effectively to his scandal. But the juridic soundness of that response, whether
it be the one proposed by Balestrieri or some other, is very
important not just for the Kerry situation, but for the on-going recovery of canon
law in modern Church governance. +++

Post-script: Within minutes of my completing the above,
friends forwarded a clarification by Fr. Cole that deserves quotation in full.
It completely squares with my opening observations.

Several weeks ago, Fr. DiNoia,
the undersecretary for the Congregation of Doctrine and Faith, asked me to
communicate with Marc Balestrieri about a question concerning abortion,
excommunication and the like. I was neither delegated by the Congregation to
speak for it, nor was I in any sense a "consultor" to the Congregation. I was
simply someone trying to help someone understand the gravity of the evil of
abortion and the possible penalties associated by formally and publically
teaching that abortion was not per se a grave sin. Both Fr. DiNoia and I assumed
that the person was a student wanting to understand the Church's teaching. I was
told he was seeking to do a JCD degree by the person in question. Neither Fr.
DiNoia nor I had any knowledge that he was going to "go after" Kerry or any
other Catholic figure for their public stance concerning the evil of abortion.
So, in my letter to Marc Balestrieri, I began by mentioning that my letter is a
personal and private opinion to him about anyone who would publically and
persistently teach that abortion is not morally prohibited. It in no way is
authoritative from the Congregation nor was I representing the Congregation.
It's only weight is that of a priest and a theologian who appeals to sacred
sources. I was helping out Fr. DiNoia who asked me to do this for
him. Fraternally in St. Dominic, Fr. Basil Cole, OP

Update: October 19

Fr. Augustine
DiNoia, op., undersecretary for the Congregation for the Doctrine of the Faith
in Rome, has denied that Dominican Fr. Basil Cole's letter to Marc Balestrieri
represents an official Vatican determination of any aspect of the Kerry case.
Catholic News Service article here. This will not surprise readers of
the October 18 Canon Law Blog above. Cole himself has reiterated the
private and unofficial character of his opinions.

It is a pity that
a refined and thoughtful letter by a thinker of Fr. Cole's credentials was so
mischaracterized (as if it were a Vatican determination on a key point in
Balestrieri's case), and that so many people (eager perhaps for something
finally to be done about the Kerry scandal) relied on those mischaracterizations
(despite the plain wording of Cole's letter itself!) and circulated them
uncritically.

Whatever else
happens now (and I fear several repercussions actually), I think a gaff like
this appears to be is going to make it even more difficult for Balestrieri to pursue his
heresy case against Kerry, a case that was already facing some significant
procedural and substantive canonical hurdles. Now, I yield to no man in my
desire to see canon law used to, among many other things, protect the unborn,
but I repeat that such efforts have to be undertaken with scrupulous regard for
canonical correctness, lest debates
about the intricacies of Church law and governance distract from our efforts to
uphold the values that law and governance are meant to serve.

Update: October 21

1. Apologist
Jimmy Akin runs through
some of Balestrieri's inconsistent and confusing statements in this matter,
here.

The interview is sound, of course (if a bit vague in places for my taste) but
it needs one qualifier for American readers, namely, Ortiz's statement that in
the annulment process "it is indispensable that both the spouses as well as the
defender of the bond really have the possibility of confronting one another,
that is, that the proceedings be a real judicial process."

C

anon law is an "inquiry-based" legal system, not
an "adversarial" system, as is common law, and
"confrontation" does not mean in canon law trials what it means in the common law
trials. There is no right of confrontation in canon law as we Americans know it
(see, e.g., 1983 CIC 1554, 1559, 1598). What exists in canon law, and what I
think Ortiz is referring to, is better described as one's right to all of the
information that is going to be used in a case, in order that all sides,
Petitioner, Respondent, and Defender of the Bond, be able to submit materials
and address matters raised by others adequately. That is what a "real judicial
process" is about in canon law.

In marriage nullity cases, Petitioners do not attack Respondents and Defenders
of the Bond don't attack Petitioners. Rather all parties, in accord with canon
law (which includes, of course, the presumption of matrimonial validity), seek
the objective truth of the case. +++

But how is the fact of his having two annulments evidence
that they were “mistakes” on Hudson’s
part? The decision to declare nullity in a marriage case does not belong to the
parties in the case, but rather to ecclesiastical tribunals. Hudson simply
could not have made a mistake in obtaining them in the way he could have,
for example, signed an “erroneous” tax return that was now causing him
embarrassment. What was meant, perhaps, was that Hudson had made mistakes in the
course of his two previous attempts at marriage. That’s certainly possible, but
it’s quite different from suggesting that the annulments
were a mistake.

As a tribunal judge, I saw many potential
converts to Catholicism approaching the Church with multiple marriages needing
adjudication. Coming to honest grips with the past is a major step toward new
life for the future. Some people make mistakes in marrying, but only some of
those mistakes result in nullity. If a convert’s annulments were declared—and
many are—it was because the tribunal found canonical nullity in the
attempted marriages. Whatever Hudson’s domestic
mistakes might have been, they were not committed by his obtaining annulments.

2. Catholic
World Report’s ubiquitous “Diogenes” posted an
Off The Record comment on the disturbing links appearing among powerful
bishops and clergy sexual abusers. They are generally interesting observations. But
consider this line: “[Abp.] Thomas Kelly, whose archdiocese now has problems of
its own, winked through Rudy Kos’s annulment (in spite of his wife's insistence
he was a pedophile), clearing his way into the Dallas seminary…”

Now wait a minute: a wife, of all people, gives emphatic evidence that a husband
is, of all things, a pedophile. Should this make a tribunal more inclined to
think the marriage was valid? Credible evidence of pedophilia is
highly

—and negatively

—relevant
to one’s suitability to enter priesthood. But is it irrelevant, or even conducive,
to one’s ability to enter marriage?

Another implicit (mis)understanding
here seems to be that Church annulments go to basically nice people who deserve
another chance. (Since pedophiles are not nice people, they should be less
able to get annulments than typical petitioners.) Surely many petitioners and
respondents are nice people. But the reality is that
annulments also occur in cases where, to put it mildly, one side, or both, are
not nice people at all. Indeed, their “non-niceness” might well arise from
the same complex of factors that led to marital breakdown, divorce, and
annulment in the first place. Annulments are not
compliments; generally, they are signs that something was seriously wrong
somewhere. The tribunal, it seems, caught that in Kos’ case; the seminary system did not.
+++

Ed
Peters--a very solid canon lawyer whose blog [Light of the Law] is ordinarily quite reliable, takes
me to task [immediately above] for a recent comment about an annulment granted
to the notorious Rudy Kos, enabling him to enter the Dallas seminary and begin
preying on boys. Maybe I skipped over the point too quickly, but I did not
intend to suggest that the Kos marriage was valid.

No one
disputes the fact that Kos's union was never a marriage or that the declaration
of nullity wasn't appropriate--in fact, it seems an open and shut case. But my
understanding is that the grounds on which the marriage is declared null
are part of the tribunal's decision.

Now if the
judgment of the tribunal was based on ANY grounds other than those of Kos's
grotesque psychopathology, it would be tantamount to a fraud.

Yet how
could Kos have been permitted to enter the seminary unless the grounds given for
his annulment were not prejudicial to his character? My (admittedly elliptical)
point is that, since Kos's wife's explanations were known, and since Kos entered
the seminary, Archbishop Kelly must have framed the declaration of nullity in
such a way as to launder Kos's reputation.

If there was collusion
between Kelly and the Dallas gang, this is villainy on Kelly's part; if there
was no collusion, it is gross pastoral negligence. Pick one.

Follow-up 2: Light of the Law replies, August 23

Note: I intended to
post this on Off The Record's board, only to find out that one has to be a paid
subscriber to Catholic World Report to have posting privileges. Fair enough, but being a
shameless moocher of other people's copies of CWR, I am forced therefore to use
my own soapbox for reply. So, here it is, as originally drafted.

First, I appreciate the acknowledgement that “maybe [you] skipped over the point
too quickly”, and that your point was “admittedly elliptical.” As I could only
go on what you wrote, it’s nice to know that I wasn’t being unfairly dense about
your text. In any case, writing on annulments is like entering a mine-field.
Avoiding one mistake might land you right on top of another. In this case, two
others. May I show you?

Brother, can you spare a
copy of CWR

for a fellow American who's down on his luck?

You’ve just written: “Now
if the judgment of the tribunal was based on ANY grounds other than those of
Kos's grotesque psychopathology, it would be tantamount to a fraud.”
Not necessarily. Tribunals often encounter cases that present a cornucopia of
grounds and evidence for nullity. Having proven matrimonial nullity on one
of those theories, there is usually little point in hearing the case on others.
Here, for example, the Kos case might
have focused on Kos’ wife, or
maybe it was a lack of canonical form case, or perhaps the marriage was found null due to an undispensed
impediment. Who knows? The point is, in none of these scenarios would the
annulment have depended on Kos’
psychology, even if evidence on that point were available. Granted, maybe the Kos case was
heard on Kos himself and went affirmative based on his
deep disorder (a judgment you and I would agree on). But, unless one has the
case file or other reliable information, one can’t simply assume what the
grounds of an annulment case were. I only know that the Kos marriage was declared
null. Do you know more specifically?

Speaking of
assumptions, you again seem to be suggesting that Abp. Kelly was personally involved in the Kos
annulment case. Have you evidence for this? It’s a sincere question since A) I
don’t know the answer, but B) I do know that it is highly unusual for a bishop
to be
involved in an annulment case. The vast majority of annulment cases around the
world are heard with no episcopal knowledge, indeed with no
bishop’s advertence, whatsoever (1983 CIC 1419-1420). But you write about Abp. Kelly
“framing” the Kos annulment decision to “launder” Kos’ reputation. That’s a
pretty steep charge. Can you share your evidence for it?

In addition—pace some important debates on the law
and even some counter examples—the general rule is that tribunal personnel are
prohibited from disclosing information from tribunal
cases to any one but the parties and their advocates (1983 CIC 471, 1455, 1598).
Thus, what exactly would you have had Abp. Kelly do with
annulment-generated information on Kos, assuming he even possessed it in the first
place?

Fundamentally, the decision to admit a man to seminary, and later ordain him, belongs to the
bishop of that diocese (here, Dallas) and to no one else (1983 CIC 241, 1052 § 3). If
the bishop of Dallas and his staff did not conduct a sufficient inquiry into
Kos’ background, and/or if Kos himself were deceptive about his past, they should be held
accountable. But based on the information available to me thus far, I cannot
conclude that Louisville's tribunal erred in Kos’ annulment case, let alone that its Abp.
Kelly acted with villainy or gross pastoral negligence in this matter.

The now-abrogated
1917
Code of Canon Law expressly recognized the right of individual faithful to
make formal denunciation of another’s delict and to assert a personal right
“to seek satisfaction or to recover damages” for an alleged canonical crime
(see 1917 CIC 1935). In fact, this right of denunciation was
recognized as a duty under natural law when the crime(s) alleged
represented a “danger to faith or religion or some other imminent public
evil was present.”

Thus, under previous
canon law (and however infrequent such filings might have been) a basis for
recognizing the kind of
denunciation apparently made against Senator John Kerry in the
Archdiocese of Boston would have been clear. Granted, the complex course of
justice would have to be followed, convictions (if any) would have to arise
from the law and the facts of the case, and any punishments meted out would
remain within the discretion of the judges. But for all that, something
would have to be done as a result of the denunciation itself.

The
matter is less clear under current canon law.

For starters, canonical
commentators recognize that 1917 CIC 1935 was not carried into the revised
1983 Code. Thus, express authorization for this kind of individual denunciation is missing from the revised law. Not rejected,
perhaps, but not asserted anymore.

Moreover, under 1983 CIC
1721, the filing of actual canonical charges against a member of the
faithful is reserved to the Promoter of Justice (described in 1983 CIC 1430,
but basically a canonical cross between in-house counsel and a district
attorney), who in turn can file charges only when so authorized by the
ordinary, usually, the diocesan bishop

(1983 CIC 1341, 1720).
Strictly speaking, the modern criminal process is not terribly different
from the way things worked under the 1917 Code, but the removal of 1917 CIC
1935 somewhat alters the light under which preliminary penal procedural
canons are read today.

Aside: It is
ironic that just at the time when, in hindsight anyway, what we might call “private attorney general” actions might have played a
role in circumventing episcopal lethargy in responding, say, to clergy
sexual abuse cases, the very canon authorizing such actions was dropped from
the revised law (yes, I know, for reasons totally unrelated to that looming
crisis, which is why I termed it ironic, not duplicitous). Perhaps some
consideration should now be given to restoring express recognition of the
right of individual denunciation.

In any event, the values underlying
1917 CIC 1935 arose from natural law, and natural law applies regardless of
whether it is specifically codified in human law. Hence, the basic right and
duty to take the kind of action that seems to have been followed in the
Kerry case is well-grounded. This natural law argument, plus a variety of
relevant canonical rationales (and I have seen only news reports about the
denunciation, not the document itself), will need to be carefully addressed
by whatever level of ecclesiastical authority eventually treats this matter.

Whatever else this case
does, it recognizes that the faith and conduct of a prominent Catholic is at
issue, as is the welfare of the faith community with which he claims
communion, to say nothing of the fate of untold third-parties whose very
lives are at risk under certain measures strongly endorsed by Sen. John
Kerry. Such concerns figure prominently among the issues that Christ charged
His Church to watch over, and that makes the Kerry case something
canon law speaks to.

I have been saying for
many years that, as general knowledge of canon law spreads among the
faithful, its ability to respond to a much wider range of questions than,
say, clergy personnel matters and annulments, is going to become clear. This
is good news. Two millennia of legal and pastoral experience is too much to
ignore any longer. +++

Fr. Beal's America
article, 18 June 2004

When a canonist with the credentials and clarity of a
Rev. John Beal treats a
topic like denial of the Eucharist to pro-abortion

Catholic
politicians, those who disagree with his conclusions need not
spend much time correcting many mistakes (that weren’t made) or dispatching many
straw men (who weren’t set up). Instead, we can get right to the issues.

The first five paragraphs of Beal's America
article (up to and including his remarks on excommunication) raise no issues
that need detain us now. But his four final topics (namely, grave sin, manifest
grave sin, obstinacy, and conclusions) bring several
questions to mind. Assuming readers are already familiar with
Beal’s full essay, I'll go directly to these observations.

Grave sin. Without underestimating the care that must go into assessing
the applicability of moral principles to concrete facts, we should resist
the idea that "the binding force of church teaching diminishes as it descends
from the mountaintop of moral principles to the dark valley of practical
applications.” Moral principles are not intended to adorn the mountain tops,
glistening brightly on far away peaks; instead they are supposed to
change into flowing waters, bringing life to plains below, even if that means
things get a little muddy along the way. Here, if we can say that a given politician’s actions are
“wrong-headed, inconsistent, pusillanimous or even stupid”, is it unthinkable
that we could also conclude those actions to have been “sinful”? Moreover, intelligent
people will admit that legislators (Catholic or otherwise) have to
work within legal strictures unfairly imposed by a solidly anti-life federal
judiciary, but that does not mean those
politicians are exempt from moral critique precisely within those parameters.
And surely it is no rebuttal for them to claim that the manifest and persistent grave sin
that results in them being denied the Eucharist is only a “fraction” of their overall
political activity!

Manifest grave sin. Here I think Beal’s description of the canonical
notion of “manifest” is wanting. He describes "manifest" as being a
condition “so habitual that it constitutes an objectively sinful lifestyle or
occupation.” But surely this reduces “manifest” to a category virtually indistinguishable from
“obstinate.”

As it is in large
part the very issue of "manifest" that distinguishes Canon 915 (whereby
ministers withhold the Eucharist from certain persons) from Canon 916 (whereby
certain persons themselves decline to approach the Eucharist), we should be
careful not to define "manifest" out of the picture. I suggest that “manifest”
here describes actions that are obvious, apparent, or otherwise quite clear to a
community of observers, with little attention being paid (yet) to the duration
of the action or its pervasiveness in one's life. In this sense, moreover,
politicians’ public votes and speeches against the right to life are "manifest"
activities in a way that few other citizens’ deeds could ever be.
"Manifest" is

also a factor that distinguishes, for the present at least, the public actions
taken by politicians in a legislature from those of taken by
private citizens in a voting booth. While both behaviors might be morally problematic,
bishops are being prudent in confronting the high-profile actions of the politicians first.

Obstinacy. For some decades, American bishops might well have been remiss in
setting out Church teachings on many topics, but the right to life is not
one of them. The presence of pro-abortion Catholic politicians signals,
therefore, not the failure of Catholic bishops to teach, but the refusal
of certain Catholic politicians to be taught. In any case, withholding the
Eucharist occurs only in consequence of actionstaken by certain persons, not of
truths inadequately grasped by them. In other words, a Catholic politician's allegedly fuzzy
thinking on the right to life would not result in being denied the
Eucharist, but his or her actions taken in violation of that fundamental
human right could.

We should, by the way, beware of making too
much of canon law's “obstinacy” (or
Beal’s “manifest”) requirement, although it is well satisfied in the case of
people who have the education levels and access to information that major
Catholic politicians enjoy on such a major topic as abortion. Surely some behavior—say, a would-be recipient approaching the Eucharist in brown-shirted
swastika gear or a KKK hood—can merit immediate withholding of the Eucharist,
that is, even without proving the offender’s “obstinacy” in resisting argument.

Conclusion. I agree with Beal that the bar for refusing Communion under
Canon 915 has been raised (for example, by adding the requirement of "obstinacy"
to the traditional requirement of "manifest"), but the sad fact is that several pro-abortion

Catholic
politicians have managed to clear it. Furthermore, not only are
some conscientious bishops obviously not acting on “visceral instincts”,
engaging in “hasty action”, or “politicizing the Eucharist”, it is instead
certain pro-abortion Catholic politicians who wish to use

for political purposes

their eligibility for
Eucharistic reception as if it were an implicit Church endorsement of their character and
positions, albeit with about as much sincerity as one senses in the
traditional candidate-kissing-the-baby photos.

Except, these powerful men and women aren’t exactly kissing babies, are
they? +++

2.
"In fact, with respect to the Eucharist, it really is not possible for a
priest or bishop to deny someone Communion unless that person is known to have
been a public sinner, in the sense of having been interdicted or excommunicated
or formally sanctioned in some way.” That’s wrong. Canon 915 plainly
says that those who “are excommunicated, interdicted, or…obstinately persist
in manifest grave sin are not to be admitted to Holy Communion.” It is patent
that one need not be under a formal sanction to fall within the purview
of Canon 915. Politicians who chronically support abortionism are
persisting in grave sin.

3.
"The presumption is that if someone presents himself for Communion, that
they are doing so with the belief that they are in a state of grace and
receiving in good faith the Eucharist.” That’s incomplete.Like most presumptions (for example, the presumption of innocence), we must also
say that the presumption of one's eligibility to receive the Eucharist yields to
sufficient contrary evidence.

4.
"That is the decision the communicant makes, not the person giving
Communion.” That’s wrong. The cardinal is confusing Canon 916,
wherein an individual who is conscious of being in grave sin should
indeed refrain from receiving the Eucharist, even if no else is aware of his
sin, with Canon 915, wherein a minister who is aware of an individual’s
obstinate persistence in manifest grave sin must not admit such person to the
Eucharist.

Let's
be clear about what Abp. Burke and others are doing: Their
stance against pro-abortion Catholic politicians receiving the Eucharist is completely
justified. In brief, their decisions are 1) made in the realm of sacramental
discipline, not penal law; 2) meant to prevent serious scandal to the faithful,
curb sacrilegious reception of Communion, and impress upon certain persons the
gravity of their deeds; 3) binding on all ministers of the Eucharist in their
jurisdictions; 4) illustrative for others who, someday, as will we all, have to
account to Jesus for what they did with His Precious Body and Blood. I need
hardly add that all that is necessary to secure one’s readmission to the Eucharist
would be confession and firm purpose of amendment.

I
agree with His Eminence that we have had pro-abortion Catholic politicians
receiving the Eucharist since 1973. What’s changed is that we now have bishops
who are saying enough is enough. +++

Not with a bang, 25 March 2004

The unexpected, but not entirely surprising, transfer of Dallas coadjutor bishop
Joseph Galante to the diocese of Camden NJ brings to a quiet close a
strange interlude in American episcopal history. Strange, because coadjutor
bishops are supposed to take over the see for which they were appointed
(1983 CIC 403 § 3). That's the whole point in naming them in the first place
and for distinguishing them from auxiliary bishops. Moreover, to facilitate the
intended transition, while awaiting succession coadjutors are supposed to
be appointed vicar general (basically, the No. 2 position in a diocese, 1983 CIC 406
§ 1).

For these reasons, coadjutor bishops tend not to be appointed unless the current
bishop has resigned or soon will resign his office (his reasons for resigning not being
important). But since late 1999 when Bp. Galante was first made the Dallas
coadjutor, there has been considerable "back-and-forth" about when,
and even whether, current Dallas Bp. Charles Grahmann (who does not reach
retirement age until July 2006)would
resign. Nor does it appear that Bp. Galante was appointed vicar general in the
meantime. As I say, strange.

Now,
it's not as if things have been quiet in Dallas for the last several years,
suggesting less need to be concerned about what some might dismiss as the
niceties of episcopal protocol. To the contrary, to pick just one notorious
example, the Diocese of Dallas under Bp. Grahmann has been host to one of the
worst (in part because much of it occurred recently) clergy sexual misconduct
cases in the country (the Kos case, since jailed and laicized), and was hit with
one of the largest jury verdicts in history.

So
one is left wondering, why was Bp. Galante, a man of obvious talent and
credentials, appointed as Dallas coadjutor, if not to take over in fairly short
order? Did Bp.
Grahmann signal his willingness to resign five years ago, and then change his mind? If
so, why? And what, finally, might this say about the other (currently four)
coadjutor appointments in the US?

To
the last question, I can suggest an answer: not much. It takes two points
to establish a line, so unless another American coadjutor is suddenly pulled
from his intended see,
one should probably regard Bp. Galante’s transfer as just another oddity associated
with the Dallas situation, and not as signaling a Roman rethinking of the
valuable office of coadjutor. +++

Happy
Solemnity of the Annunciation, everybody! (PS: Please add my name to the list of
those who think that crisis of abortionism --here, and around the world-- warrants the Church's
raising this magnificent day to the rank of Holy Day of Obligation (1983 CIC
1244).

Sauce
for the Gander?

21
March 2004

I’m not adverse to holding others
to a high standard of accuracy, so I should not hesitate to hold myself to the
same norm.

In an interesting article on
annulments for the National Catholic Register
(14-20 March 2004, pp. 1, 12) for which I was an identified source, Pat Novecosky writes: “The
dramatic increase [in annulments] is based on [various] factors, Peters said.”
So far, so good. Sounds like something I'd say (indeed, have said, many
times.) But next comes, “Procedural changes in canon law—including a new
emphasis on psychological factors—make it easier to prove a marriage null.”
Hmm.

First, I hope I didn’t say that
“emphasis on psychological factors” (referring to Canon 1095) was a procedural change in canon law. Obviously, Canon 1095 is a substantive
canon, not a procedural one, a distinction I regularly explain to interested
inquirers, albeit with mixed results. In any case, blurring these two
categories would be sloppy thinking coming from a canonist.

More worrisome, though, is the
possibility that I might have said it’s now “easier to prove a
marriage null.” Instead, I thought I said it’s “easier to prove an invalid
marriage null.” There's a subtle but important difference between the two
statements. The first (while defensible and sometimes used by trustworthy ecclesiastics) can lend unwitting support to a
casual-divorce-and-easy-annulment mentality, while the second squarely aligns
one with Cardinal Ratzinger and his September 1994
Letter on Eucharistic
reception by the divorce-and-remarried (esp. ¶ 9). Personally, I am more comfortable agreeing with Cardinal Ratzinger
than with seeming, perhaps, to have caved into the divorce mentality.

Now
admittedly,
if I were critiquing someone else I’d hasten to add that, given the complexity of the subject matter and the
occasional technical inexpertise of busy journalists, perhaps the expert,
despite having actually said what he certainly thought he said, had simply been misunderstood or
somehow had questionable positions mistakenly attributed to him. But,
while extending him the benefit of the doubt, I’d still encourage his setting
the record straight. Accuracy on these things is important. +++